Introduction:
OAPI is the main organization that ensures the protection of intellectual property rights in most African French speaking countries. Its member states are:
Benin, Cameroon, Burkina Faso, Central African Republic, Chad, Congo, Ivory Coast, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Togo.
These countries are treated as one state in trademark law. Apart from that there is no national trademark law in the member states. Therefore it is not possible to obtain national registrations in these countries.
International treaty membership:
Singapore Treaty on the Law of Trademarks (February 13, 2016)
Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (March 5, 2015)
Legislation:
Bangui Agreement Relating to the Creation of an African Intellectual Property Organization, Constituting a Revision of the Agreement Relating to the Creation of an African and Malagasy Office of Industrial Property (Bangui (Central African Republic), March 2, 1977)
Agreement Revising the Bangui Agreement of March 2, 1977, on the Creation of an African Intellectual Property Organization (Bangui (Central African Republic), February 24, 1999) (Official translation)
Government Institutions:
African Intellectual Property Organization (OAPI) (Yaoundé Cameroon)
Type of trademark:
Registrable as a trademark is any visible sign capable of distinguishing the goods and services of any enterprise, including in particular surnames by themselves or in a distinctive form, special, arbitrary or fanciful designations, the characteristic form of a product or its packaging, labels, wrappers, emblems, prints, stamps, seals, vignettes, borders, combinations or arrangements of colours, drawings, reliefs, letters, numbers, devices, pseudonyms.
The following trademark types are registrable: trade marks, service marks and collective marks.
Ground for refusal :
A mark may not be validly registered if:
(a) it is devoid of distinctiveness, notably owing to the fact that it consists of signs or matter constituting the necessary or genetic designation of the product or the composition thereof;
(b) it is identical to a mark that belongs to another owner and is already registered, or the filing or priority date of which is earlier, and which relates to the same or similar goods or services, or where it so resembles such a mark that it is liable to mislead or confuse;
(c) it is contrary to public policy, morality or the law;
(d) it is liable to mislead the public or business circles, notably as to the geographical origin, nature or characteristics of the goods or services in question;
(e) it reproduces, imitates or incorporates armorial bearings, flags or other emblems, the abbreviated name or acronym or an official sign or hallmark indicating control and warranty of a State or intergovernmental organization established by an international convention, except where the competent authority of that State or of that organization has given its permission.
Application content:
Any person wishing to obtain the registration of a mark shall file with the Organization or with the Ministry responsible for industrial property, or send it by registered mail with a request for acknowledgement of receipt
(a) his application, addressed to the Director General of the Organization in a sufficient number of copies;
(b) a document proving payment to the Organization of the filing fee;
(c) an unstamped private power of attorney if the applicant is represented by an agent;
(d) a reproduction of the mark, including a list of the goods or services to which the mark applies, with the corresponding classes of the International Classification of Goods and Services for the Purposes of the Registration of Marks (Nice Agreement); the number of reproductions of the mark to be supplied.
The Organization shall grant as the filing date the date of receipt of the application for registration.
Application process:
The application process includes only a formal examination, without indication of possible identical or similar trademarks.
The processing time from first filing to registration or first office action is approx. 9 to 12 months.
After registration, the trademark is published in the official Trademark Bulletin.
The Organization shall publish every certificate of registration issued. Those particulars shall be entered in the Special Register of Marks.
Any interested party may oppose the registration of a mark by sending to the Organization, within a period of six months from the publication a written statement setting out the reasons for his opposition, which reasons must be based on ground for refusal or of a prior right belonging to the opposing party.
The Organization shall send a copy of the statement of opposition to the applicant or to his agent, who may reply, setting out his reasons, within a once-renewable period of three months. The reply shall be forwarded to the opponent or to his representative. If his reply does not reach the Organization by the prescribed time limit, the applicant shall be deemed to have withdrawn his application for registration and the registration shall be cancelled.
An appeal from the Organization’s decision on the opposition shall lie to the High Commission of Appeal within a period of three months from the date of receipt of notice of the decision by the interested parties.
Refusal:
Any filing that does not conform to the requirement shall be rejected.
The irregularity shall be notified to the applicant or to his agent, who shall be invited to put the documents in order within a period of three months following the date of notification. That period may be extended by 30 days in a case of proven necessity at the request of the applicant or his agent. An application thus put in order within the said period shall retain the date of the original application.
Where rectified documents are not produced within the period allowed, the application for registration of the mark shall be rejected.
If an application is rejected by the organization, the applicant has sixty days in which to appeal against the decision. In this case, the said Commission shall be the judge and arbiter of final instance of the application in question.
Rights of exploitation and related delay:
Ownership of a mark shall vest in the person who files it first.
Registration of a mark confers on its owner the exclusive right to use the mark, or a sign resembling it, in connection with the goods or services for which it has been registered and similar goods or services.
Registration of the mark likewise confers on the owner the exclusive right to prevent all third parties from making use in business without his consent, of identical or similar signs for goods or services that are themselves similar to those for which the trademark or service mark has been registered where such use is liable to cause confusion. Where an identical sign is used for identical goods and services, a risk of confusion shall be presumed to exist.
The registration of a mark shall be valid for only ten years from the filing date of the application for registration; however, the ownership of a mark may be preserved indefinitely through successive renewals of the registration, which may be effected every ten years.
Transfer and conditions:
The rights subsisting in a mark shall be transferable in whole or in part.
Acts involving transfer of ownership, the licensing of the right of exploitation or the assignment of that right, or a pledge or cancellation of a pledge, in respect of a mark shall, on pain of invalidity, be evidenced in writing.
Transfer of the rights shall not be enforceable against third parties unless they are recorded in the Special Register of Marks kept by the Organization.
Certification:
When registration has taken place, a certificate shall be issued to the owner of the registration setting out the following information, in particular, as recorded in the Register:
(a) the serial number of the mark;
(b) the filing date of the application for registration, the date of registration and the priority date if priority is claimed;
(c) the trade name or surname and forename of the owner of the mark, together with his address;
(d) a reproduction of the mark;
(e) a mention of the classes of goods and services to which the registration relates.
Withdrawal and cancellation:
The registered owner of a mark may renounce the registration either wholly or in respect of part of the goods or services for which the mark is registered.
At the request of any interested party, the court may order the cancellation of any registered mark which, for an uninterrupted period of five years prior to the request, has not been used on the national territory of one of the member States, except where the registered owner has legitimate reasons for having failed to use it; the cancellation may be extended to all or part of the goods or services for which the said mark was registered.
At the request of the interested parties referred to above or of the Organization, the court shall declare the registration of a mark invalid if it does not conform to the provisions of what type of sign is registrable or not, conflicts with a prior right; in the latter case, invalidation may only be pronounced at the request of the owner of the prior right. The invalidity may apply either to all or to only some of the goods or services for which the mark was registered.
Customs protection:
The owner of a mark or holder of an exclusive right of exploitation may, acting in pursuance of an order from the president of the civil court within whose jurisdiction the action is to be taken, including at the border, engage bailiffs or public or ministerial officials, including customs officials, if necessary with the aid of an expert, to make a detailed inventory, with or without seizure, of the goods or services that he claims have been marked,
The court may order the confiscation of goods bearing a mark recognized as being counterfeit, even in the case of acquittal, and also that of the implements or tools that served specifically for the commission of the offense.
In all cases the court may order the destruction of goods bearing marks recognized as being counterfeit.
Sources:
Wipo.int: Bangui Agreement Relating to the Creation of an African Intellectual Property Organization, Constituting a Revision of the Agreement Relating to the Creation of an African and Malagasy Office of Industrial Property (Bangui (Central African Republic), March 2, 1977)
Agreement Revising the Bangui Agreement of March 2, 1977, on the Creation of an African Intellectual Property Organization (Bangui (Central African Republic), February 24, 1999) (Official translation)
Vincent Lagier
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